Opinion
Decided April 4, 1932.
Mechanics' liens — Foreclosure, receiver and equitable relief — Appeal by unsuccessful cross-petitioner appeals all parties and questions — Architect without lienable claim — Failure of contractor to file statement with owner, defeats lien — Section 8312, General Code — Contracts with owner for fire escapes and electric work.
1. Lien foreclosure actions held appealed for all purposes and as to all parties, including successful cross-petitioning lien claimant where unsuccessful cross-petitioning claimants appealed, and the necessary interest appears.
2. Architect has no lienable claim.
3. Person furnishing and erecting fire escapes but not giving owner statutory statement and certificate showing subcontractor's character of material and labor and amount charged held not entitled to lien (Section 8312, General Code).
4. Company held not entitled to lien based on contract directly with owner accepting bid for furnishing labor and material listed in "electric work" and vestibule telephones and letter box specifications (Section 8312, General Code).
APPEAL: Court of Appeals for Hamilton county.
Mr. Charles M. Evans, for plaintiff.
Messrs. Dempsey Dempsey, Mr. Sanford Brown, Mr. William R. Collins, Messrs. Cramer Gordon, Mr. Leo Weinberger, Mr. W.F. North, Messrs. Harmon, Colston, Goldsmith Hoadly, Messrs. Bolsinger Black, Messrs. Dale Dale, Mr. John Bolsinger, Mr. J.G. Williams, Mr. Anthony B. Dunlap, Mr. Clarence A. Schneiders, Messrs. Murphy Murphy, Messrs. Freiberg Simmonds and Mr. Henry M. Bruestle, for defendants.
These cases are appeals from the court of common pleas of Hamilton county, and have been considered together. A motion to dismiss the appeals as to Leslie J. Roehm has been filed by him, upon the ground that the cases were only appealed as to B.J. Rowekamp and Lee Kasley, Inc., who gave appeal bonds.
The actions were for judgment, foreclosure of a lien, appointment of a receiver, and to obtain other equitable relief.
Rowekamp and Kasley, Inc., filed cross-petitions, asserting liens. The trial court decided adversely to these lien claimants, and they perfected appeals. The cases were appealed thereby for all purposes and as to all parties who were affected by the judgment in favor of the successful lien claimant. As the distributive share of the complaining lien claimant would be increased if the lien of the successful lien claimant Roehm was vacated — the necessary interest to bring the cross-petitioning lien claimant into the court on appeal was present. Emerick v. Armstrong, 1 Ohio, 513; Reid v. Quigley, 16 Ohio, 445; Glass v. Greathouse, 20 Ohio, 503; Johnson v. Connable, 41 Ohio St. 178; Pratchett v. Marsh, 52 Ohio St. 494.
The motion to dismiss the appeals as to Leslie J. Roehm, another cross-petitioning lien claimant, whose lien was sustained by the trial court, will, therefore, be overruled.
The liens of only three claimants are disputed. The lien of Leslie J. Roehm was based upon his service as an architect, and under authority of Robert V. Clapp Co. v. Fox, 124 Ohio St. 333, 178 N.E. 586, such lien cannot be sustained, an architect not having a lienable claim.
The lien of B.J. Rowekamp is based upon furnishing three fire escapes "To Charles T. Roehm, Jr., Owner Contractor," and erecting the same. He failed to comply with the provisions of Section 8312, General Code, requiring the delivery to the owner of a preliminary statement, showing the names of subcontractors, persons furnishing material, with accompanying certificate indicating the amount charged and character of material and labor furnished. It is claimed that, because his contract was direct with the owner, he was relieved from filing such statement, and several Michigan cases are cited in support of this claim, as well as decisions of our Supreme Court following the Michigan court on other points in the lien law wherein the Ohio and Michigan lien laws are identical.
In spite of such decisions we are unable to escape the mandatory force of our statute, which has been construed by our own Supreme Court to require the statements mentioned in Section 8312, General Code, in two cases almost identical to the one at bar. Van Dorn Iron Works Co. v. Erie-Huron Realty Co., and Erie-Huron Realty Co. v. Van Dorn Iron Works Co., 108 Ohio St. 314, 140 N.E. 325. See, also, Matzinger v. Harvard Lumber Co., 115 Ohio St. 555, 155 N.E. 131.
The lien of Lee Kasley, Inc., is based upon a written contract in which it is stated: "I hereby accept your bid of $1309.55 for furnishing all labor and material listed in `Electric Work' and vestibule telephones and letter box specifications." This contract was also made directly with the owner.
The authorities noted hereinbefore dispose of the claim of this lien claimant also.
Decrees may be entered accordingly, similar to that entered in the court of common pleas, except as hereinbefore indicated in the case of the claim of Leslie J. Roehm.
Decrees accordingly.
HAMILTON and CUSHING, JJ., concur.